Punjab-Haryana High Court
Om Parkash And Another vs State Of Haryana on 4 October, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-699-SB-2002 (O&M) 1
In the High Court of Punjab and Haryana at
Chandigarh.
CRA-S-699-SB-2002 (O&M)
Date of Decision:- 04.10.2013
Om Parkash and another Appellants
Versus
State of Haryana Respondent
CORAM : HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
1.Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. Whether to be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ?Yes
Present: - Mr. Atul Lakhanpal, Sr. Advocate, with
Mr. Arjun Lakhanpal, Advocate,
for the appellants.
Mr. Chetan Sharma, Assistant Advocate General,
Haryana, for the respondent.
NARESH KUMAR SANGHI,J.
The present appeal has been filed by appellant No.1 Om Parkash and appellant No.2 Kamla challenging the judgment of conviction dated 06.04.2002 whereby both of them were held guilty for the offence punishable under Section 306, IPC, by the learned Sessions Judge, Jind, and the order of sentence dated 09.04.2002 whereby each of them was sentenced to undergo rigorous imprisonment for seven years besides payment of fine of Rs.3,000/-, and in default, each one of them was to further undergo rigorous imprisonment for two years. Brief Facts:-
Molar had five sons, namely, Karam Singh, Raj Singh, Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 2 Om Parkash (appellant No.1), Lal Chand and Dharam Singh. Karam Singh and Om Parkash were joint in mess while other brothers were residing separately with their respective families. Appellant No.2 Kamla is widow of Karam Singh who died approximately 16 years prior to the commission of suicide by Smt. Suresh, wife of appellant No.1 Om Parkash, on 04.05.2002. Surinder is the son of appellant No.2 Kamla. Mewa Singh (PW2) is the father and Albel Singh (PW3) is the cousin of complainant Raj Bala (PW1) and Smt. Suresh (since deceased).
First Information Report (Ex.PJ/1) in the present case was registered on the basis of statement (Ex.PA) of Raj Bala. In her statement before the police, Raj Bala (PW1), inter alia, alleged that her parental village was Udeypur (Uchana). Her marriage and that of her sister Smt. Suresh (since deceased) was solemnized about 19 years ago with Raj Singh and Om Parkash, respectively. Both the sisters were residing separately. Her husband (complainant) had since died who were five brothers, namely, Karam Singh, Raj Singh, Om Parkash, Lal Chand and Dharam Singh. Karam Singh and Om Parkash were joint in mess. While rest of them were living separately. Marriage of Karam Singh was solemnized with Kamla, daughter of Chatru before her marriage. After marriage when Raj Bala and her sister Smt. Suresh came to their matrimonial home, they came to know about the illicit relation of Kamla and Om Parkash. Even Karam Singh was also aware of the said illicit relation and he tried to Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 3 restrain them but Kamla and Om Parkash did not mend their ways and about 16 years ago on account of the said reason Karam Singh consumed pesticide and committed suicide. Even thereafter, they continued with their illegal activities. Smt. Suresh also used to interdict them and on that account Smt. Suresh was not maintaining good relation with Om Parkash and Kamla and as such they were harassing her. Smt. Suresh spent most of her time at her parental house. For last 17 years, Om Parkash was employed in the army. Smt. Suresh had a daughter Prinka, aged about five years. Om Parkash and Kamla were treating Smt. Suresh as an obstacle in their way and both of them had severally beaten Smt. Suresh at several occasions. A panchayat from village Ram Rai had visited on multiple occasions but both of them did not mend their ways. For the last two months, Om Parkash was on leave and he had to report back on 03.05.2000, but he did not go. On 04.05.2000 at about 4.00 P.M., Raj Bala had gone to the house of her sister Smt. Suresh to know about her well being and saw that Om Parkash, Kamla and Surender, son of Karam Singh, were standing outside the room on the first floor (Chobara) of Krishan son of Ram Chander. Raj Bala also saw that dead body of her sister Smt. Suresh was lying in the room and blood and froth had emanated from her mouth. Steel glasses and a bottle of pesticide were lying near her. As soon as Raj Bala reached there, they fled away from the said place. Raj Bala followed them and came to the house of her sister and found that Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 4 Prinka, daughter of her sister was also lying in the verandah and blood and froth had emanated from her nose and mouth. However, nobody was present at the house. Smt. Suresh had committed suicide after administering poison to her daughter Prinka due to the pressure mounted by Kamla, Om Parkash and Surender. Raj Bala thereafter went to her parental house at village Udeypur and in the company of her family members she came back to village Ram Rai. Panchayat of village Ram Rai could not satisfy her family members and hence Raj Bala along with her father Mewa Singh contacted the police and lodged the report.
On the basis of the statement suffered by Raj Bala (PW1), FIR No. 96, dated 05.05.2000, for the offence punishable under Section 306, IPC, was registered at Police Station, Sadar, Jind.
During investigation, appellant No.1 Om Parkash was arrested and after completion of the investigation, the charge- sheet for his prosecution for the offence punishable under Section 306, IPC, was presented before the learned Area Judicial Magistrate at Jind. After supplying the copies of the charge-sheet etc. to the appellant No.1, the case was committed to the court of Session for trial. Finding a prima facie case, a charge for the offence punishable under Section 306, IPC was framed against appellant No.1 Om Parkash to which he pleaded not guilty and claimed trial.
After recording of the statement of Raj Bala, an Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 5 application under Section 319, Cr.P.C., was presented for summoning of appellant No.2 Kamla and her son Surender. The said application was allowed only qua Kamla and as such she was summoned to face trial along with appellant No.1 Om Parkash.
Fresh charge for the offence punishable under Section 306, IPC, was framed for prosecution of both the appellants on 20.10.2001, to which they pleaded not guilty and claimed trial.
In order to substantiate its allegations, the prosecution examined the following witnesses:-
PW1 Raj Bala. She is the sister of Smt. Suresh (since deceased) She not only deposed the facts as she narrated to the police in her statement (Ex.PA) but improved her statement to a larger extent. The additions in her deposition before the court were duly confronted by the defence during her cross- examination which will be discussed in the later part of this judgment.
PW2 Mewa Singh. He is father of Smt. Suresh (since deceased) and had supported the prosecution version. PW3 Albel Singh.
Singh He is cousin of Smt. Suresh (since deceased). He too deposed in favour of the prosecution.
PW4 Dr. V.P.Kakkar. He deposed that on 05.05.2000 he was posted in the General Hospital at Jind. On that day, he along with Dr. Maltri Gupta of the same Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 6 hospital performed autopsy on the dead bodies of Smt. Suresh and Prinka and according to their opinion, the cause of death in both the cases of Smt. Suresh and Prinka was poisoning (endosulfphan). In cross- examination, he admitted that post-mortem staining was of bluish colour.
PW5 Constable Dilbag Singh. He had prepared the scaled site plans (Ex.PH and Ex.PH/1) on the demarcation of Raj Bala. The marginal notes were in his hand and correct according to the spot. PW6 Sub Inspector Bhan Singh. He deposed that he had prepared the report under Section 173, Cr.P.C. while being posted as Station House Officer at Police Station, Sadar, Jind. In his cross-examination, it was admitted by him that Kamla and Surender had nothing to do with the family affairs of Om Parkash and as such they were found innocent. He also admitted the fact that Deputy Superintendent of Police had also verified the said facts and had arrived at the same findings. PW7 Constable Dalip Singh. He deposed that on 05.05.2000, he had delivered the special report (Ex.PJ) to the learned Area Judicial Magistrate, the Superintendent of Police and the Deputy Superintendent of Police.
PW8 Head Constable Suresh Kumar. He deposed that Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 7 on 05.05.2000, he along with Constable Jai Bhagwan took the dead bodies to the Civil Hospital, Jind, for getting the post-mortem examination done. After post- mortem examination, the doctor handed over the sealed parcels containing the clothes and belongings of both the deceased and an envelope addressed to the Chemical Examiner, along with sample seal "VP". On return to the police station, he handed over the sealed parcels to Assistant Sub Inspector Sadhu Ram who took the same into possession vide recovery memo (Ex.PK) which was attested by him and Constable Jai Bhagwan.
PW9 Nafe Singh. He had tendered his affidavit (Ex.PL), in evidence.
PW10 ASI Sadhu Ram. He inter alia deposed that on 05.05.2000 he was posted in Police Station, Sadar, Jind and during patrolling, Raj Bala (PW1) met him and suffered statement (Ex.PA) which was thumb marked by her in token of its correctness. After endorsement (Ex.PA/1), the said statement was sent to police Station, Sadar, Jind, through Constable Jai Bhagwan, on the basis of which, FIR (Ex.PJ) was registered by ASI Bishambar Dayal. He further deposed that he along with the police officials went to the spot after arranging the photographer, got clicked the photos of Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 8 the place where the dead bodies were lying and prepared inquest report (Ex.PK). He took into possession steel glass (Ex.P10), container of poison (Ex.P11), knife (Ex.P12) and the vomiting material from the nearby place where the dead body of Smt. Suresh was lying. The articles so recovered were wrapped in a parcel and taken into possession vide recovery memo (Ex.PB). Rough site plan (Ex.PM) was prepared and thereafter he visited the house of Om Parkash where the dead body of Prinka was lying. After getting the photographs clicked, inquest report (Ex.PD) was prepared. Rough site plan (Ex.PM) was also prepared and thereafter sent the dead-bodies for post-mortem examination. During investigation, appellant No.1 Om Parkash was arrested on 06.05.2000. He further deposed that in terms of Section161, Cr.P.C. he recorded the statement of various witnesses. PW11 Head Constable Dharambir Singh. He tendered his affidavit (Ex.PO) in the evidence.
PW12 Harish Kumar. He deposed that on 05.05.2000 he clicked photographs (Ex.P13 to Ex.P17), the negatives of which were Ex.P18 to Ex.P22. The photographs and the negatives were handed over to the police.
After completion of the evidence of the prosecution, the Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 9 statements of the appellants in terms of Section 313, Cr.P.C. were recorded. In reply to the last question appellant No.1 Om Parkash stated as under:-
" I am innocent. I never had any illicit relations with Kamla. I never harassed Suresh. I never gave her beatings. Suresh was under the influence of her sister, Raj Bala, after the death of my brother Raj Singh. Raj Bala incited Suresh to live separately from other family members and also get separate land for cultivation and join Raj Bala, i.e. Raj Bala incited Suresh who started remaining in tense. I refused to do so as I was in service and my land and family was being looked after by all other family members. I stayed on leave for few more days to arrange turi etc. I was away to the fields when I was told that my wife and daughter were unwell. I rushed back home and found them vomiting and my wife was dead. I tried to save my daughter. She also died. My father called the parents of Raj Bala. They asked me to keep Raj Bala as wife and to transfer my land also to the share to Raj Bala and her children. We refused. They lodged false case."
Appellant No.2 Smt. Kamla also denied the incriminating material appearing against her and in answer to the last question, she stated as under:-
Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 10
" I was innocent. I was living with my son Surinder separately from co-accused Om Parkash and Suresh since deceased. I never had illicit relations with Om Parkash. I never harassed Suresh since deceased. On the day of alleged occurrence, I was not present in the house as I was away to my fields for usual work."
In defence evidence, the appellants examined the following witnesses:-
DW1 Nirmal Kaur, Computer Clerk. She deposed that in the death register maintained by the office of Chief Medical Officer, Jind, name of Karan Singh son of Molar was mentioned against serial No. 25 at page 87 and the date of his death was mentioned as 09.07.1984. According to the entry, he was reported to have died due to illness. She proved photo-copy (Ex.D1) of the entry.
DW2 Chander Bhan. He deposed that he was lambardar of village Pokar Kheri and also a President of Panchayat of 22 villages which was known as "Nogama Khap" and village Ram Rai fell in "Nogama Khap". A panchayat was convened in village Ram Rai in connection with the death of Smt. Suresh in which the villager of the surrounding area including the relation of Smt. Suresh had participated. The parents Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 11 of Smt. Suresh (since deceased) imposed a condition for not registering the case against the accused if the land owned by Om Parkash was to be transferred in the name of Raj Bala and to perform "kareva" marriage of Raj Bala with Om Parkash. Those conditions were not fulfilled and, therefore, the case was got registered by the complainant. In cross-examination by the Public Prosecutor, the witness admitted that he remained Chairman of Block Samiti and sarpanch of his village three times. He had also contested the election of the State assembly. He further conceded that panchayat was convened on 05.05.2000 in village Ram Rai. He denied the suggestion that appellant No. 1 Om Parkash was maintaining illicit relations with appellant No.2 Smt. Kamla and they used to harass Smt. Suresh. After tendering into evidence, photo-copy of ration card (Ex.D2). The defence evidence was closed.
After hearing the learned counsel for the parties, the learned trial court held both the appellants guilty under Section 306, IPC, and awarded the sentence as has been described in the earlier part of this judgment.
Learned counsel for the appellants submitted that concededly the marriage of appellant No.1 Om Parkash was solemnized approximately 19 years prior to 04.05.2000, the day on which Smt. Suresh committed suicide; it is the admitted case Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 12 of the prosecution that Smt. Suresh (since deceased) was never harassed on account of demand of dowry; the presumption enshrined in Section 113-A of the Evidence Act is not attracted in the present case; the prosecution allegations with regard to the harassment of Smt. Suresh on account of the illicit relation of appellant No.1 Om Parkash with appellant No.2 Kamla were general in nature since no specific date, time, place and the manner were disclosed; though the appellant No.1 Om Parkash was not maintaining extra marital relations with appellant No.2 Kamla yet for the sake of the decision of the present appeal, it is assumed that the appellants had illicit relations with each other then also the suicide committed by Smt. Suresh after administering the poison to her five years old daughter cannot be said to have taken place on account of the alleged abatement by the appellants; if the complainant Raj Bala (PW1) who was the sister of Smt. Suresh and Smt. Suresh herself had come to know about the alleged illicit relations of the appellants after three months of their marriage then why they remained silent for more than 18 ½ years. He further argued that the defence of the appellant No. 1 Om Parkash appears to be more improbable in the present case that after death of Smt. Suresh her parents put up a proposal to transfer the agriculture land belonging to Om Parkash in favour of Raj Bala and to perform "kareva" marriage with her, since her husband had already died. He further argued that the stand of the appellant No.1 Om Parkash was well proved from the Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 13 deposition of Chander Bhan (DW2). It has also been argued that Raj Bala (PW1) had improved her version to a larger extent during her deposition before the learned trial court.
In support of his submission he has placed reliance on the latest judgment delivered by Hon'ble the Supreme Court in the matter of Pinakin Mahipatray Rawal Versus State of Gujarat, 2013 (4) RCR (Criminal) 271; and Division Bench judgments of different Hon'ble High Courts in the matters of Rajesh alias Rameshbhai Manubhai Makwana (Kheda) Versus State of Gurarat, Gurarat 2009 (1) GCD 753; Amalendu Pal @ Jhantu Versus State of West Bengal, 2010 (1) R.C.R.(Criminal) 643; Ram Partap Versus State of M.P., 2004 (3) R.C.R.(Criminal) 441; State of Punjab Versus Kamaljit Kaur alias Bholi and another, 2008(2) R.C.R. (Criminal)
562.
On the other hand, learned counsel for the State refuted the submissions made by the learned counsel for the appellants and submitted that due to illicit relations being maintained by the appellants with each other, Smt. Suresh (since deceased) had no other option but to commit suicide, therefore, while relying upon the depositions of the prosecution witnesses and the material available on record, the learned trial court had rightly held the appellants guilty for the offence punishable under Section 306, IPC, and awarded suitable sentence and no interference is called for by this court. In support of his contention, he has placed reliance on the judgment of Hon'ble the Supreme Court in the Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 14 case of Laxman Ram Mane Versus State of Maharashtra, 2011 (5) R.C.R.(Criminal) 98.
I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
The undisputed facts are as follows:-
(i) that marriage of Smt. Suresh with appellant No.1 Om Parkash was solemnized approximately 19 years prior to her death;
(ii) that Raj Bala (PW1) was not only the sister of Smt. Suresh (since deceased) but her marriage was solemnized with the brother of appellant No.1 Om Parkash on the same day on which the marriage of Smt. Suresh was solemnized;
(iii) that appellant No.2 Kamla is the wife of elder brother of appellant No. 1 and sister-in-
law of Smt. Suresh (since deceased) and that of Raj Bala (PW1);
(iv) that Smt. Suresh committed suicide by consuming pesticide; and
(v) that Prinka (since deceased) was five years old daughter of appellant No.1 Om Parkaash and that of Smt. Suresh (since deceased).
In view of the above admitted position, the issues which Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 15 arise for consideration before the court are:-
(a) Whether appellant No.1 Om Parkash was maintaining extra marital/illicit relations with appellant No.2 Kamla?
(b) Whether on account of the said illicit relations appellants treated Smt. Suresh with cruelty to such an extent that she (Smt. Suresh) had no other option but to commit suicide? and
(c) Whether the ingredients of Section 306, IPC are attracted in the present case to hold either or both the appellants guilty for the offence punishable under Section 306, IPC?
Since all the issues raised herein above are inter-related and as such the same are being discussed together.
Section 306, IPC, refers to abetment of suicide, according to which, if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The suicide might be committed on account of disturbance caused by mental or physical cruelty or by both. To bring the act of the accused within the ambit of Section 306, IPC, the prosecution has to establish that a person committed suicide and the same was abetted by the accused. For alleged extra- marital relationship between the appellants, which if proved, could be illegal or immoral but the court has to see as to Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 16 whether the prosecution has established that the appellants had provoked, incited or abetted Smt. Suresh to commit suicide.
It is the admitted case of the prosecution that three months after their marriage Smt. Suresh (since deceased) and Raj Bala (PW1) had come to know regarding the illicit relations of the appellants and the said relationship continued for approximately 19 years when Smt. Suresh committed suicide on 04.05.2000. During intermediate period, Smt.Suresh also enjoyed the company of her husband, i.e. appellant No.1 Om Parkash, and, therefore, she had delivered a daughter about five years prior to her death. If the appellant No.1 Om Parkash had created such an atmosphere continuously for the last 19 years, in such eventuality there was no occasion for Smt. Suresh to have the company of her husband and cohabited with him. If this fact is analysed from another angle that Smt. Suresh accepted the illicit relations of the appellants with each other and thereafter she also cohabited with her husband then there was no question on the part of appellant No.1 Om Parkash to have harassed, torture or treating Smt. Suresh with cruelty to such an extent that she might commit suicide.
Though Raj Bala (PW1) did depose before the court that Om Parkash and Kamla used to beat Smt. Suresh and panchayat was convened many a times in that regard, so that the appellants might improve their behaviour but to no effect. The said version of Raj Bala (PW1) has not been corroborated by any independent Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 17 witness. After she had deposed that the panchayat was convened many times then why any member of the said panchayat was not produced before the court to prove the said fact. Though the prosecution has produced Mewa Singh (PW2), father of the deceased, and Albel Singh (PW3) cousin of the deceased but their evidence is also interested one. While dealing with this aspect of the case, this court is cautious of the fact that there is no bar to base conviction on the basis of the deposition of the relations or interested witnesses but it all depends upon the facts of each case. For 19 long years, the appellants alleged to have maintained extra-marital relations but Smt. Suresh (since deceased), Raj Bala (PW1) or any other person from their parental or matrimonial family did not lodge protest with any public authority, is not conceivable. During intermediate period, Smt Suresh (since deceased) had also been cohabiting with her husband appellant No.1 Om Parkash and gave birth to a female child, namely, Prinka, there cannot be any other better proof of good relations of Smt. Suresh with her husband appellant No.1 Om Parkash.
The consistent defence of appellant No.1 Om Parkash that after the unnatural death of Smt. Suresh, Raj Bala whose husband had already died wanted to grab the agricultural land not only of appellant No.1 Om Parkash but by nominating her widow sister-in- law (Jethani) Kamla and her adolescent son Surender, in the Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 18 present case, she had an evil eye on the property of Kamla as well. The deposition of Chander Bhan (DW2) who was a prominent personality of the local area being Lambardar, ex- chairman of Block Samiti, President of "Nogama Khap" consisting of 22 villages cannot be brushed aside, lightly. He deposed that on 05.05.2000, a panchayat of the "Nogama Khap" was convened in village Ram Rai which was attended by the villagers of nearby several villages including the family members of the complainant side and a proposal had come from the complainant side that in case appellant No.1 Om Parkash would transfer his agricultural land in favour of Raj Bala (PW1) and perform "Kareva" marriage with her, then the matter would not be reported to the police. It is the settled principle that the evidence of the prosecution and that of the defence has to be weighed with same scale. The learned trial court has assigned no reason to discard the sworn testimony of Chander Bhan (DW2). It is also waving in the mind of this court while weighing the evidence led by the two sides that the defence has to probablise its version while the prosecution has to prove the allegations beyond the shadow of reasonable doubt. The way in which Raj Bala (PW1) and Mewa Singh (PW2) had improved their version and attempted to put a new version before the learned trial court and the same were duly confronted with their previous statements, would not lead this court to maintain the judgment of conviction and order of sentence recorded by learned trial court. Even if, the factum of Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 19 improvements, additions and embellishment in their depositions are ruled out from consideration then also such statements can not be acted upon without independent corroboration. The defence set up by the appellants appears to be more probable in the present case.
Even otherwise, if the whole case of the prosecution is taken at its face value then also the fact remains that illicit relations of the appellants for 19 long years after the marriage of Smt. Suresh (since deceased) would by itself might not be sufficient for her to commit suicide, particularly, when she had learnt about the illicit relationship of the appellants just three months after her marriage and during intermediate period she had been cohabiting with appellant No.1 Om Parkash and even stayed with him at the places of his posting being a service man.
In the matter of Pinakin Mahipatray Rawal's case (supra), while dealing with a similar set of facts the Hon'ble Supreme Court held as under:-
" We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 20 a substantial part in inducing or causing one spouse's loss of other spouse's affection. Mere acts, association, liking as such do not become tortuous.
It was further held that:
We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to derive the spouse to commit suicide to fall within the explanation to Section 498-A, IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A, IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had never intended or acted in such a manner which under Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 21 normal circumstances, would drive the wife to commit suicide.
The Hon'ble Supreme Court in the above noted case further held as under:-
Section 306 refers to abetment of suicide. It says that if any person commit suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 22 suicide."
In the matter of Rajesh alias Rameshbhai Manubhai Makwana's case (supra), Hon'ble the Division Bench of Gujarat High Court declined to accept the deposition of the brother of the deceased where the husband of the appellant was allegedly maintaining extra marital relations with one "G" and on that account deceased committed suicide.
In the matter of Amalendu Pal's case (supra), Hon'ble the Supreme Court held as under:-
" In support of the aforesaid contention, learned counsel for the prosecution relied upon Explanation 2 to Section 107. He submitted that prior to the commission of suicide by the deceased, the appellant had, by bringing said Anita as his second wife to his house facilitated the commission of suicide by the deceased and thus, the appellant intentionally aided the commission of suicide by the deceased. The evidence on record, however, does not support such a case. It is pertinent to note that the appellant had brought Anita to stay with him at his house three months prior to the death of the deceased. If the deceased had been so perturbed by the act of the appellant in marrying the said Anita and in bringing her to his house that she felt impelled to commit suicide then Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 23 she could have done so on the very day when Anita had come to stay with the appellant in his house as naturally at that point of time her annoyance or dismay with life would have been at its pinnacle. From the period of three months which elapsed in between the incident of the appellant bringing Anita to his house and the deceased committing suicide, it can be clearly inferred that it was not the act of the appellant which instigated or provoked the deceased to commit suicide."
In Ram Partap case (supra), Hon'ble Madhya Pradesh High Court, held as under:-
"Thus, I find that there is no evidence that the appellant has abetted his wife for commission of suicide. There is no evidence about any physical cruelty by the appellant to the deceased. In order to bring home the charge under Section 306, there should be an abetment to commit suicide. Even assuming that the prosecution has proved the fact of illicit relationship but that itself is not sufficient to hold the appellant to be guilty of the offence punishable under Section 306, IPC. This relationship as per prosecution was going on since last four years. The illicit relationship though not proved may be a reason for suicide, but cannot be Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 24 said to be abetment which requires a positive step to be taken by persons to induce the commission of the offence. From the evidence on record, it cannot be said that the appellant abetted his wife for commission of the suicide."
So far as the judgments cited by the learned counsel for the State are concerned, the same are not at all applicable to the facts and circumstance of the case in hand.
In Rakhal Debnath (supra), the deceased wife had committed suicide within 35 days of her marriage with appellant who was maintaining illicit relations with his own niece who lived in the same house.
In the matter of Laxman Ram Mane's case (supra), the wife had committed suicide within 1 ½ years after marriage on account of the harassment meted out to the deceased. The presumption under Section 113-A of the Evidence Act was drawn against the appellant.
In view of the facts and circumstances of the case and the ratio of the judgments discussed herein above, this court is of the considered opinion that the prosecution has miserably failed to prove that the appellants abetted Smt. Suresh to such an extent that she had no other alternative but to commit suicide, therefore, the judgment of conviction and the order of sentence passed by the learned trial court deserve interference by this court and as such the same are set aside and the appeal is allowed. The Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh CRA-S-699-SB-2002 (O&M) 25 appellants are acquitted of the charge levelled against them. The fine imposed, if deposited, shall be refunded to the appellants in accordance with the norms.
(NARESH KUMAR SANGHI) JUDGE 04.10.2013.
Anoop Aggarwal Anoop Kumar 2013.12.13 09:25 I attest to the accuracy and integrity of this document High court Chandigarh